When is information “held” under FOI?
Ibrahim Hasan looks at the thorny issue of whether information is “held” on behalf of a public authority.
The Freedom of Information Act 2000 (FOI) applies not only to information held by a public authority but also to information held by another person on behalf of the authority (section 3(2)(b)). This includes situations where a third party creates or uses information as part of the provision of a service to a public authority.
However, determining whether such information is held on behalf of the authority is not always straightforward. Relevant factors include:
- The nature of the relationship between the parties
- The contractual terms
- The degree of connection between the information held by the third party and the functions of the public authority
- Whether the public authority has routine access to the information
When a public authority shares information and gives instructions to a solicitors firm, the solicitors may hold information on behalf of the authority, as long as it is not held for their own purposes (e.g. to comply with regulatory requirements or to defend against negligence claims). This is a question of fact depending on the circumstances of each individual case.
In Francis vs Information Commissioner and South Essex Partnership NHS Foundation Trust, EA/2007/0091 (21 July 2008) the applicant requested information from an NHS Trust about the death of her son, including papers held by the solicitors who represented the Trust at the inquest. The Tribunal noted that some disputed papers were annotated, suggesting they might be the solicitors’ working papers. However, it concluded that the annotations were likely present before the documents were passed to the solicitors. Therefore, the papers were held on behalf of the Trust, and the Tribunal ordered their disclosure.
However in the more recent case of Robert Angus Hill v Information Commissioner and Sheffield City Council, FT/EA/2024/0163 (4 February 2025), the Tribunal ruled that information held by a solicitors firm was not held for the purposes of FOI. In this case, Sheffield City Council received an FOI request relating to legal advice about a property development. In accordance with its retention policy, the Council had deleted its records but 28 boxes of files were held by their external lawyers. The Council refused the FOI request on the basis that visiting the solicitors offices to access and review the information would exceed the FOI cost limit. However, the Tribunal chose to go back to first principles and ask whether the information was even held for the purposes of FOI. It concluded that it was not; noting that the Council had no intention of retaining the information or entrusting it to the solicitors firm for safekeeping.
The Tribunal stated (paragraph 17):
“The position of the firms of solicitors is straightforward. The firms have their own retention periods for information, determined by risk management concerning potential claims against the firm. As long as they hold the information, they have obligations, notably a duty of confidentiality to the client. However, these are the firm’s records; duties are owed to the former client, but the records do not belong to the client and are not held on behalf of the client.”
These cases highlight the importance for FOI practitioners asking whether the information is held on behalf of the authority when dealing with FOI requests for information held by third parties.
Ibrahim Hasan is a solicitor and director of Act Now Training.
